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NAVY | DRB | 1999_Navy | ND99-00860
Original file (ND99-00860.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-ATAA, USN
Docket No. ND99-00860

Applicant’s Request
The application for discharge review, received 990609, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government, change to RE1 & SPD #. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed the American Legion as his representative on the DD Form 293. The applicant failed to respond by the deadline date to a letter requiring the applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary discharge review was conducted and applicant is no longer eligible for review by this Board.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 000317. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. Discharged in absentia.

The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “Misconduct - Drug abuse (use)” vice “DRUG ABUSE (USE)”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. (EQUITY ISSUE) This former member proffers that youth and immaturity sufficiently mitigated his misconduct of record to warrant upgrade of his discharge to Honorable.

2. (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member further opines that his otherwise creditable service period is sufficient to warrant an Honorable separation.

3. (EQUITY ISSUE) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character reference dated January 18, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)              800508 - 800819  COG

 Period of Service Under Review :
Date of Enlistment: 800820               Date of Discharge: 840727

 Length of Service (years, months, days):

         Active: 03 11 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.27 (6)    Behavior: 2.73 (6)                OTA: 3.13

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, SSDR with 1 Star

 Days of Unauthorized Absence: 57

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

830319:  Retention Warning: Advised of deficiency (Drug abuser), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. Applicant identified as a drug abuser.

 830428:  Substance abuse report: Marijuana use and possession, less than monthly, Mar83, ashore off duty. Medical officer found applicant not dependent and recommended Level I. Shore patrol 2Mar83. Commanding officer recommended retention and refer to Level I treatment. Comments: Apprehended by shore patrol. Positive portakit. Attending NDSAP 24Apr - 15 May83.

830525:  NJP for violation of UCMJ, Article 134: Wrongfully use and possession marijuana.
         Award: Forfeiture of $322 per month for 2 months, restriction and extra duty for 45 days, reduction to ATAA. No indication of appeal in the record.
830525:  Retention Warning: Advised of deficiency (Use and possession of marijuana.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

830617:  NJP for violation of UCMJ, Article 134: Breaking restriction, violation of UCMJ Article 92: Violation of a lawful instruction to wit: HAMPINST 1020.3X PAR. 1, by wearing dungarees through the gate.
         Award: Forfeiture of $200 per month for 2 months, restriction for 45 days, reduction to ATAR. No indication of appeal in the record.
830621:  Retention Warning: Advised of deficiency (Use and possession of marijuana, breaking restriction, and violating a lawful regulation by wearing dungarees through gate.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840426:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
840501:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
840530:  Applicant to unauthorized absence, 2400, 30May84.

840604:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
840630:  Applicant declared a deserter.

840706:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840725:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

840727:  Applicant discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 840727 under other than honorable conditions for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In the applicant’s issue 2, the Board found that the applicant’s service does not warrant an Honorable discharge. The applicant went to CO’s non-judicial punishment two times, received 3 retention warnings and was in an unauthorized absence status for 57 days, in addition to having to be discharge in absentia from the Navy. No relief will be granted on the basis of this issue.

In the applicant’s issue 3, the Board found there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 4/84, effective
25 Apr 84 until 16 Sep 84, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street, SE Rm 309
                  Washington, DC 20374-5023       


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